lowell/Carter claimform - Kays cat 'debt'***Claim Discontinued***

[wagw81]

I have been battling a claim with Bryan Carter on a Shop Direct account

they state I opened in 2006 and defaulted on.

 

I have no knowledge of the account.

They have issued proceedings that I have defended, and also I have served a CCA s77/78 on them in between.

 

Their only evidence is a blank unsigned reconstituted credit agreement date April 2006.

 

So far they have offered no other information under CCA, only that their client will be in touch. This was 2 months ago.

 

Since then the Court case has been allocated to a small claims hearing in Jan.

 

I have returned a final defence, along the lines of the CCA, and stating the fact that its a blank recon credit agreement.

 

The judge made an order that a final claim and defence be lodged last week to all parties, however I have not had their final claim/papers in the post and its now past the deadline the judge set.

Although they have in fact paid the hearing fee ?

 

My question is,

 

should I now make the court aware that I have not received their final defence as was ordered by the Judge.

 

Is there a process or protocol to do this ?

I would have thought they are now in breach of the order prior to hearing going ahead.

 

Any advice gratefully received. Thanks

[fkofilee]

Fill in this;

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

 

Drop the answers back here...

The site team will beable to advise accordingly.

[SabreSheep]

You could phone the court and see if they have received a copy, inform them that you have not been served a copy and ask them for a copy

 

AndyOrch will be able to advise in more detail.

[wagw81]

You could phone the court and see if they have received a copy, inform them that you have not been served a copy and ask them for a copy

 

AndyOrch will be able to advise in more detail.

 

 

 

Thanks, will do this tomorrow.

[wagw81]

Thanks for that.

[dx100uk]

I think you mean you have both exchanged witness statement

But carter has still failed to provide a signed agreement

 

DX

Get that link done please

And also post up the defence you filed too

 

Dx

[wagw81]

Name of the Claimant ? Lowell Portfolio I Limited

Date of issue – . 24th April 2015

 

What is the claim for –

 

The defendant entered into a credit agreement with shop direct financial services limited ("the original creditor") on 2nd September 2006.

under account number ****** ("the agreement").

The defendant entered into the agreement for the purpose of acquiring goods from the catalogue Kays.

A reconstituted copy of the agreement together with the terms and conditions are exhibited at 'PD1'

 

The defendant had the benefit of the agreement

 

The last payment the defendant made towards this account was on 28 September 2010 in the sum of £20

 

The defendant breached the terms and conditions of the agreement by failing to pay the minimum monthly payments as fell due

. or to pay the default sum by the due date.

The account fell into arrears on 21 March 2011.

The defendant accrued a debt of £3215

 

The debt was assigned to the claimant on or around 28 March 2011 and a notice of assignment would have been sent to the defendant at that time.

 

What is the value of the claim? £3472

inc interest £257. Interest Pursuant to s.69 CCA 1984 from 25 April 2015 to 25 August 2015 totalling 123 days at 8% per annum amounting to £86 and continuing at the daily rate of £0.70

 

Claim Fee £185

Court Costs £80

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? cat debt

When did you enter into the original agreement before or after 2007? They State APRIL 2006

 

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim.Lowell

Were you aware the account had been assigned – did you receive a Notice of Assignment? No

Did you receive a Default Notice from the original creditor? No

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No

Why did you cease payments? Never opened this account.

 

What was the date of your last payment? They Say 28/09/10

 

Was there a dispute with the original creditor that remains unresolved? No

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a plan? No

 

My Defence Sent

 

IN THE COUNTY COURT AT DUDLEY CLAIM :

 

BETWEEN

 

 

 

LOWELL PORTFOLIO I LTD Claimant

 

-and-

 

xxxxxxxxxxxxxxxxxxxx Defendant

___

 

PARTICULARS OF DEFENCE

 

 

1. This Particulars Of Defence is filed pursuant to the Order of District Judge XXXXXX dated 22nd October 2015
   
2. The Defendant has not executed a credit agreement with the Claimant. And has no knowledge of entering into any form of purchase agreement with the Claimant. Having no knowledge of any sales/purchase agreement for "goods" supplied and delivered to the Defendant by the Claimant.
   
3. The Defendant denies ever purchasing goods from the claimant.
   
4. The Defendant denies ever receiving goods from the claimant.
   
5. The Defendant denies ever receiving any notice(s) of assignment from the Claimant.
   
6. To no avail. The Defendant had previously requested in writing on 5th & 20th September 2015. (‘Exhibited A1’) Page 3 & (‘Exhibited A2’) Page 4
    
   That the Claimant provide strict proof of the following :-
   (i) That the defendant purchased goods from the claimant.
   (ii) The date(s) of any such alleged purchases.
   (iii) The delivery times of these alleged purchases.
   (iv) The delivery addresses of these alleged purchases.
   (v) Proof of a purchase/sales contract between the defendant and the claimant.
    
   The Claimant has not responded to my request for information Pursuant to the consumer credit act s.77/78
   

 

1. The Defendant puts to the Claimant, that the evidence submitted in the claim they refer to as ‘PD1’ dated 25/05/2006 represents a blank, undated, unsigned and wholly incomplete and unexecuted reconstituted credit agreement. That the Defendant has never had the benefit of. Therefore the Defendant puts to the Claimant that the agreement is unenforceable.
   
2. Prima facie the Claimant knows or ought to know that there is no contract between the Defendant and the Claimant for the supply of goods as pleaded, therefore the Claimants claim is speculative and furthermore amounts to an abuse of the process. Accordingly the Defendant avers the Claim ought to be struck out as an abuse as the Claimant holds no cause of action and therefore the Claimants conduct is unreasonable in bringing a claim without foundation.
   
3. The Defendant seeks the Claimants claim to be dismissed with an order as to costs thrown away in favour of the Defendant.
    
   Statement of Truth
   I, xxxxxxxxxxxx, the Defendant believe that the facts stated in this Defence are true.
   Signed …………………………………………
   Dated
   

[Andyorch]

You could phone the court and see if they have received a copy, inform them that you have not been served a copy and ask them for a copy

 

AndyOrch will be able to advise in more detail.

 

To add to the above ...In the event that a Claimant or Defendant fails to comply with directions or other orders of the Courts, courts may exercise its discretion to exercise its coercive powers to maintain the proper conduct of the legal proceedings conducted before it.

 

Some of the options open to the court are.....

 

A party may not rely on a document which has not been disclosed,without permission.

 

Failures to comply with the formal requirements for witness statements,affidavits, or exhibits, may result in the court refusing to admit the evidence and/or refuse to allow the costs for its preparation.

 

Imposing costs sanctions against the party

 

Regards

 

Andy

[dx100uk]

post 7 sanitised pers info was showing

[wagw81]

Thanks very much Andy for the advice.

 

 

I have contacted the Court this morning,

they now say BC haven't as yet paid the hearing fee,

so its now 3 days overdue. Or sent in the final Claim / Witness docs.

 

 

The only further communication was an acknowledgement for mediation from them.

 

 

The Court have advised to wait another week,

then formally notify the Court if nothing changes, and this will be passed to the Judge.

 

 

Hopefully the case will be struck out if there is no further response from BC.

 

 

Hopefully the Pre 2007 blank credit agreement will go against them in any event.

[Andyorch]

[wagw81]

Received a 'Notice of Discontinuation' today for the whole claim from BC. Which is good news ! Does anyone know if I can now use this Or some other means to apply and have my credit file updated ? Thanks

[Andyorch]

Excellent news Wag...Thread title amended to reflect the outcome.

 

Unfortunately no you cant use it...just because they have discontinued the claim ...the debt remains.

 

Regards

 

Andy